Paper 1 - Statutory Interpretation Flashcards
Who’s role is it to decide what Parliament meant by the words used in a statute and apply it to the case?
It is the role of the courts to interpret an Act and apply it to the case before them.
What are the four methods the Judges have developed to help interpret statutes?
•The Literal Rule •The Golden Rule •The Mischief Rule •The Purposive Approach Some Judges prefer one to the other. They can result in very different outcomes.
What is the Literal Rule?
WHITELY v CHAPPELL
Judges give words in a statute their original dictionary meaning, even if it results in an absurd outcome to cases: WHITELY v CHAPPELL.
What is the principle from FISHER v BELL?
Where words have a technical legal meaning then, under the Literal Rule, this will be used: FISHER v BELL.
What is an advantage for the Literal Rule?
HINT: supremacy of Parliament
The basis of the rule is that the best way to interpret the intention of Parliament is to follow the literal meaning of the words they have used in a Statute. Thus it respects the supremacy of Parliament and leaves law making to those elected for the job. If there is a problem with the words in a Statute, Parliament can amend the Statute if it chooses.
What is a disadvantage of the Literal Rule?
HINT: absurd conclusion
Where the use of the Literal Rule does lead to an absurd conclusion, it can hardly be said to be carrying out the intention of Parliament, since Parliament is unlikely to have intended absurdity or injustice. It cannot have been Parliament’s intention to let someone get away with an extra vote as happened in WHITELY v CHAPPELL.
What is an advantage of the Literal Rule?
HINT: certainty, predictability
It also encourages certainty in the law, as the Judges are not allowed to alter the meaning of words in Acts to suit themselves. The predictable result makes it easier for people to know what the law is and how Judges will apply it.
What is a disadvantage of the Literal Rule?
HINT: perfectly drafted
The Literal Rule assumes that every Act will be perfectly drafted and this is not always the case. Words often do not have one plain ordinary meaning, or meanings can change over time. Further, it is not always possible to draft an Act so that it covers every situation that Parliament intended to regulate. This can be seen in WHITELY v CHAPPELL.
What is an advantage of the Literal Rule?
HINT: faulty legislation and loopholes
Some Judges argue that they are doing Parliament a service by drawing faulty legislation and loopholes to their attention - as in FISHER v BELL, where Parliament had to amend the statute shortly after the case.
What is a disadvantage of the Literal Rule?
HINT: external aids
The Literal Rule is favoured by those Judges who are reluctant to use external aids; yet external aids (e.g. Hansard) could have cleared up any uncertainty over the interpretation of the Act.
Why is the Golden Rule and when may it be used?
The Golden Rule is a modification of the Literal Rule and may be used if a Judge considers that the Literal Rule would lead to an absurd outcome.
How have Judges applied the Golden Rule in a narrow way?
ADLER v GEORGE
Where words are capable of having more than one meaning, the meaning that is the least absurd should be used: ADLER v GEORGE.
How have the Judges also used the Golden Rule in a wider way?
(RE SIGSWORTH)
Judges have used the Golden Rule in a wider way. Here the Golden Rule is used to modify clear words in a statute to avoid an absurdity: RE SIGSWORTH.
What is an advantage of the Golden Rule?
HINT: escape route
Where there is a problem using the Literal Rule, the Golden Rule provides an ‘escape route’ - the Judges can use it to prevent the absurdity and injustice caused by the Literal Rule.
What is a disadvantage of the Golden Rule?
HINT: interpreting ‘absurd’
The main problem is in deciding when a literal interpretation produces an ‘absurd’ result. Different Judges may have different views. This can lead to uncertainty in the law.
Professor Zander said the Golden Rule was an ‘unpredictable safety valve’. This means that it will be difficult for lawyers to advise their client what the result will be.
What is an advantage of the Golden Rule?
HINT: what Parliament really means
The Judges put into practice what Parliament really means. Parliament’s intention would not have been to create an absurd situation. It would clearly have been unjust to allow the son in RE SIGSWORTH to benefit from his crime.
What is a disadvantage of the Golden Rule?
HINT: undemocratic
The unelected Judges are beginning to make law, as they are not confining themselves to the actual words in the statute, but instead are trying to work out what Parliament intended. The Golden Rule can be said to be undemocratic.
What is an advantage of the Golden Rule?
HINT: sensible meaning
It allows the Judges to choose the most sensible meaning where there is more than one meaning to the words in the statue.
What is a disadvantage if the Golden Rule?
HINT: rare occasions
It is very limited in its use, so it is only used on rare occasions.
What case was the Mischief Rule laid down in?
HEYDON’S CASE
HEYDON’S CASE provides that Judges should consider 4 factors when interpreting a statute. What are they?
- What was the common law before the statute? ;and
- What Problem, or ‘mischief’, was the statute trying to remedy? ;and
- What was the remedy proposed by Parliament? ;and
- What was the true reason for that remedy?
According to HEYDON’S CASE, what must the Judges do after considering the 4 factors?
The Judges should then interpret the statute in such a way as to put a stop to the method.
What case was the Mischief Rule used in?
SMITH v HUGHES
What is an advantage of the Mischief Rule?
HINT: avoid absurd
The Mischief Rule helps avoid absurd and unjust outcomes to cases where the Literal Rule is used. It recognises that to only look at the words of a statute is inadequate. Instead the emphasis I said on making sure that the Mischief or gap in the law prior to the statute is remedied. This is more likely to produce a ‘just’ result in a case.
How was the statute interpreted in SMITH v HUGHES to remedy the Mischief?
The statute in SMITH v HUGHES was interpreted to ‘clean up the streets’ and to enable people to walk along the streets without being solicited by common prostitutes. Thus, it was only fair to convict the women as this would remedy the Mischief aimed at by the statute.
What is a disadvantage of then Mischief Rule?
HINT: what Mischief
It’s use relies on being able to find out what the Mischief in the common law Parliament was trying to remedy. Given the limited external aids that the judges can use to interpret a Statute, this can be a very difficult task for the Judges.
What is an advantage of the Mischief Rule?
HINT: will of Parliament
The Mischief Rule attempts to follow the will of Parliament rather than the exact words written by Parliament.
What is a disadvantage of the Mischief Rule?
HINT: unelected
This rule increases the law making power of the unelected Judges at the expense of Parliament. Judges are trying to fill the gaps in the law with their own views on how the law should remedy the gap. Indeed, the Judges hearing the appeal in ROYAL COLLEGE OF NURSING v DHSS disagreed with the use of the Mischief Rule.
What is an advantage of the Mischief Rule?
HINT: flexibility
It promotes flexibility in the interpretation of legislation. Judges can interpret Statutes in the light of changing social, economic and technological circumstances.
What is a disadvantage of the Mischief Rule?
HINT: 16th century
The Mischief Rule dates back to HEYDON’S CASE in the 16th century when there were fewer Statutes and those that were passed would have been less complex and thus easier to work out Parliament’s intentions. Thieves makes the rule less suited to the quantity and complexity of modern legislation.
What is the Purposive Approach?
The Purposive Approach requires the court to work out the general purpose of Parliament in passing the Act and then interpret the Act to fulfil that purpose.
What do courts look at when working out the purpose of the Act?
The courts look at the wording in the Act, but are also willing to look outside the Act for meaning. E.g. Hansard may be available.
What does the Purposive Approach allow the courts to do?
What is important?
This approach allows the courts to read words into a Statute where there are gaps. It is the spirit rather than the letter of the law which is important. The court may look at the purpose of the Statute even where the words are clear.
Which case used the Purposive Approach?
COLTMAN v BIBBY TANKERS
The company was liable because the general purpose of the Act was to make the employer liable for harm caused by defects in anything provided by the employer.
How does the Purposive Approach go beyond the Mischief Rule?
The Purposive Approach goes beyond the Mischief Rule in that the court is not just looking to see what the defect was in the common law prior to the Act; the Judges are deciding what they believe Parliament meant to achieve by passing the Act.
What is an advantage of the Purposive Approach?
HINT: respect the wishes of Parliament
This modern approach helps to avoid an absurd and unjust outcome to a case. It is likely to respect the wishes of Parliament since it seeks to find and fulfil the general purpose of Parliament.
What is a disadvantage of the Purposive Approach?
HINT: unelected
The Purposive Approach enables the unelected Judges to take over the function of Parliament in making new law, as the Judges did in the EX PARTE SMITH CASE. The Purposive Approach also leads to uncertainty in the law. It is impossible to know when Judges will use this approach or what result it might lead to.
What is an advantage of the Purposive Approach?
HINT: flexibility
It promotes flexibility in the interpretation of legislation and enables the law to be kept up to date by the Judges filling in the gaps, as the Judges did in COLTMAN v BIBBY TANKERS. It is particularly useful where there is new technology which was unknown when the Act was passed.
What is a disadvantage of the Purposive Approach?
HINT: general purpose
Critics argue that it is impossible to discover the general purpose of Parliament in passing legislation; only the words of the statute can show what Parliament wanted. It is not for a Judge to argue that ‘Parliament said one thing but meant another’.
What is an advantage of the Purposive Approach?
HINT: European Law
The Purposive Approach is particularly suited to the interpretation of European Law and the HUMAN RIGHTS ACT 1998. These are written in very broad terms, with general principles set out and the Judges having to interpret according to the ‘spirit rather than the letter’ of the law.
What is a disadvantage of the Purposive Approach?
HINT: less suited
Whilst it is suited to the interpretation of European Law, it is less suited to the more precise and detailed structure of English legislation.
What are internal aids to interpretation?
Internal aids are clues within the Statute itself that may help to make its meaning clearer.
What are some intrinsic aids to interpretation?
- The short and Long title of the Statute
- Definition sections
- Schedules
- The preamble (introduction to the Statute)
What is the Long title good for?
The Long title is good for the Mischief and Purposive Approaches in that it may give clues as to the purpose of the Statute. Such as the THEFT ACT 1968 which says in the Long title that it is ‘an Act to revise the law of England and Wales as to theft and similar…offences’.
What are definition sections?
What do they set out?
These set out lists of what’s meanings are intended for certain words used elsewhere in the Statute. For example, there is a definitions section which defined ‘property’ in the THEFT ACT 1968.
What do schedules give?
They are at the end of the Statute and give extra detail required by earlier parts of the Statute. For example, Schedule 1 of the THEFT ACT 1968 gives extra detail on the crime of taking or destroying fish.
What are external aids to interpretation?
External aids are methods which are outside a Statute which the judges may use, together with the various approaches to interpretation, to help them interpret that Statute.
What are some extrinsic aids to interpretation?
- Dictionary
- A law reform report on which the Statute is based (such as law commission reports)
- The INTERPRETATION ACT 1978 can be used if the word is covered by the 1978 Act. E.g. he includes she
- Hansard
- An international treaty entered into by the UK if the word is defined there.
What type of the dictionary must be used for external aids to interpretation?
An authorised dictionary of the year the Statute was passed.
What is Hansard?
When can it be consulted?
The official record of what is said in Parliament.
Can be consulted where the word or phrase being interpreted was discussed in a Parliamentary debate. The case of PEPPER v HART allowed Hansard to be consulted in limited circumstances.
What is the principle from MARLEASING SA?
Where the national law to be interpreted (e.g. a Statute) is based on European Law, the English courts have to interpret it in the light of the wording and purpose of the European Law: MARLEASING SA
What does Section 3 of the HUMAN RIGHTS ACT 1998 say?
So far as it is possible to do so, legislation must be read and given effect in a way which is compatible with the rights in the European Convention on Human Rights. This only applies to a case where one of the rights is a Human Right.
